Vs. Hari Prasad Yadav  INSC 338 (13 May 1994)
Dayal (J) Yogeshwar Dayal (J) Kuldip Singh (J)
1994 SCC (4) 177 JT 1994 (4) 116 1994 SCALE (2)1019
Judgment and Order was delivered by YOGESHWAR DAYAL, J.- Judgment in Civil
Appeal No. 2647 of 1984 This appeal is directed against the judgment of the
Single Judge of the High Court of Patna dated 26-4-1983 whereby the Single
Judge set aside an order dated 28-5-1982 passed by the executing court in
Execution Case No. 7 of 1977 while giving the benefit of Order 21 Rule 89 of
the Code of Civil Procedure (hereinafter referred to as 'the Code') to the
the sale took place on 25-5-1981 and even the objections, which were filed for
setting aside the sale under Order 21 Rule 90 of the Code were dismissed on
4-5- 1982. An application purporting to be under Order 21 Rule 89 of the Code
was filed on 28-5-1982. It may be mentioned that even an
appeal has been filed against the order of the executing court dated 4-5-1982 dismissing the objections to the sale filed under
Order 21 Rule 90 of the Code. After the dismissal of the objections under Order
21 Rule 90 of the Code the executing court granted time for moving the High
Court till 22-5-1982 and the appeal filed by the
appellant against the order of the executing court dismissing objections under
Order 21 Rule 90 of the Code stood dismissed on 21-12-1983. The said order is also under challenge before this Court
in Special Leave Petition (Civil) No. 8523 of 1985 and is being disposed of
stated above the application purporting to be under Order 21 Rule 89 of the
Code for setting aside the sale was filed on 28-5-1982 which was granted by the executing court on the same date by
the following order:
"28-5-1982 Order The judgment-debtor, has placed before me, has
since reconciled to his fate after exhausting all the processes, at his command
and is now ready to deposit the decretal amount and he is ready to deposit
another Rs 5000 and undertakes to deposit the remaining amount within a short
period. It was submitted on his behalf that irreparable loss will be caused if
his prayer is not allowed.
interest of justice and in the circumstance of the case I take the liberty to
order the judgment-debtor to deposit henceforth Rs 5000 and order to deposit
the remaining amount under decree latest by 10-6- 1982 failing which the sale
will be confirmed.
find that the auction purchaser in the circumstances would be put to loss the
position being that the judgment-debtor would separately deposit another amount
equivalent to the interest at the rate of 5% from the date of deposit by the
auction purchaser till 10-6-1982 by way of compensation remuneration
for the auction purchasers. This amount is ordered to be deposited along with
the decretal amount on separate item on this amount by month of June failing
which the sale in question will be confirmed.
The judgment-debtor must comply with the order by the date fixed.
R.C. Ram A.S.I. 111" 4.On revision being filed by the auction purchaser
against this order, the High Court accepted the same and dismissed the
application filed under Order 21 Rule 89 of the Code as being barred by time.
The other objections of the auction purchaser, as to the maintainability of the
application under Order 21 Rule 89 of the Code in view of the dismissal of the
objections under Order 21 Rule 90 of the Code were not decided since the High
Court felt that the application under Order 21 Rule 89 was barred by time in
view of the limitation provided under Article 127 of the Limitation Act, which
provides as under:
Description of suit Period of Time from limitationwhich period begins to run
---------------------------------------------------------- 127 To set aside a
sale in execution Sixty daysThe date of of a decree including any such the
by a judgment- debtor.
is settled law that an application to set aside sale under Order 21 Rule 89 of
the Code is governed by Article 127 of the Limitation Act. Section 5 of the
Limitation Act has no application on its own wordings. Section 5 of the
Limitation Act reads as follows:
Extension of prescribed period in certain cases.- Any appeal or any
application, other than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, may be admitted after the prescribed
period if the appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the application within
Explanation.- The fact that the appellant or the
applicant was misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period may be sufficient cause within
the meaning of this section." The application under Order 21 Rule 89 of
the Code being an application under the provisions of Order 2 1, Section 5 of
the Limitation Act, on its own language, is not applicable specifically.
are thus left with the question whether Section 148 of the Code would be
applicable to the present case or not.
Section 148 of the Code would not be applicable to the present case for the
simple reason that the time for making an application under Rule 89 of Order 21
of the Code is not fixed by the Court.
High Court was thus right in coming to the conclusion that the executing court
had no jurisdiction whatsoever to entertain the application purporting to be
under Order 21 Rule 89 of the Code after the period of limitation prescribed by
Article 127 of the Limitation Act.
result is that the appeal fails and is dismissed.
Learned counsel for the judgment-debtor had invited us to give a finding as to
the extent of the property which was sold as a result of court sale. We are not
inclined to go into this question in the present proceedings as it is a matter
to be decided by the executing court while granting the sale certificate.
in SLP (Civil) No. 8523 of 1985
the present case the executing court had dismissed the objections filed by the
petitioners/judgment-debtors under Order 21 Rule 90 of the Code of Civil
Procedure by order dated 4-5-1982. The High Court, affirming the
order of the executing court, dismissed the appeal by the impugned order dated 21-12-1983.
find no reason whatsoever to interfere with the impugned order of the High
Court. The special leave petition is accordingly dismissed.